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The Audiencia Nacional has annulled, on the grounds of lack of evidence, most of the fines imposed by the Spanish Competition Authority (CNMC) in a decision from September 2016. In such decision, the CNMC fined more than 20 cement and concrete companies for having allegedly participated in a cartel between 1999 and 2014. The Audiencia Nacional criticises the CNMC’s “artificial construction” of the information and documents gathered in the inspections.

Background

In September 2014, the CNMC carried out unannounced inspections in the premises of five companies active in the cement and concrete industry. As a result, in December of that year, it opened infringement proceedings (S/0525/14 – Cementos) against ten companies for alleged practices contrary to article 1 of the Spanish Competition Act and article 101 of the Treaty on the Functioning of the European Union. In April 2015, the proceedings were extended to include four more companies and, as a result of new unannounced inspections in May 2015, to other 14 companies. The proceedings ended in September 2016, when the CNMC issued its decision sanctioning 24 cement and concrete companies.

The CNMC sanctioned the following conducts in each of the affected markets:

  • In the concrete market, three alleged single and continuous infringements in three Spanish regions: Northeast (1999-2014), Central (2009-2014) and South (2005-2014). These single and continuous infringements consisted of agreements concerning exchange of commercially sensitive information, market-sharing and price-fixing.
  • In the cement market, the CNMC established the existence of a single and continuous infringement consisting of market sharing and exchange of sensitive information between four competitors at national level during 2013 and 2014.

Judgments delivered by the Audiencia Nacional

According to the 21 recently issued judgments by the Audiencia Nacional, the evidence submitted by the CNMC does not confirm the existence of a preconceived plan on which the existence of the four single and continuous infringements attributed to the sanctioned companies can be substantiated.

In this regard, the Audiencia Nacional recalls that according to settled case law, three requirements must be met to establish participation in a single and continuous infringement, namely: (i) the existence of an overall plan pursuing a common objective; (ii) the intentional contribution of the undertaking to that plan; and (iii) the fact that the undertaking has knowledge (proved or presumed) of the infringing conduct of the other participants.

The CNMC relied on the following evidence to support the existence of a preconceived overall plan and, in particular, the complementary link or cohesion between the actions of the accused companies.

  • In order to prove the existence of a preconceived plan, the CNMC relied on certain striking expressions included in various documents (“gentlemen’s agreement”, “board” or “club”) and in emails (“sharing”, “market share”, “prices”, “meetings”). The Audiencia Nacional, on the other hand, considers that, although it is true that these expressions may constitute evidence of collusive conduct, they do not demonstrate the existence of a common plan pursued by all the accused companies in the same market and geographical area.
  • The CNMC also relied on certain Excel tables and spreadsheets in which the undertakings were mentioned as evidence of the existence of that common plan. According to the CNMC’s decision, these tools were used to manage the agreements—in particular, they were used to allocate customers, formulate proposals to competitors, periodically follow-up agreements’ compliance, and monitor competitors’ activities and compliance with the agreements. However, the Audiencia Nacional concludes that these documents do not prove the existence of a common plan underlying a single and continuous infringement for two main reasons: (i) there is no record of how the tables and spreadsheets were prepared or the source of the data included in them; and (ii) there is no evidence that the companies were aware of them.
  • Additionally, the CNMC regarded as evidence of the complementary link between the companies, the mention of third companies in some internal and external e-mails between accused companies—which allegedly proved their participation in the controversial events. However, the Audiencia Nacional finds that there is no sufficient evidence to demonstrate that those third companies had any knowledge of the events, let alone of their content, since they were not listed as recipients or senders. Therefore, it is difficult to accept that all the companies involved in the e-mails were linked by a common objective. Even if e-mails are a valid indication pointing in that direction, they cannot be accepted without further corroborating evidence.

Moreover, in relation to this type of e-mails in which third parties are mentioned, the Audiencia National considers that they cannot be generally used as incriminating proof of a company’s participation in anticompetitive conduct. Although they can be used as evidence, there must be additional supporting evidence that confirms participation. In the words of the Audiencia Nacional: “[it] is necessary to have other elements that justify, at least, that what was said between them with respect to the third company is true or plausible.”

Finally, the Audiencia Nacional criticises the out-of-context analysis performed by the CNMC of several emails used to prove the participation of several companies in the alleged anticompetitive conduct. Particularly, the CNMC argued in one of the cases that some emails proved the existence of a tripartite market-sharing agreement in the Central region. However, after analysing the documents and assessing the evidence, the Audiencia Nacionalconcludes that the content of those emails reflects an alternative economic decision that was fully justified by the recent recession in the concrete market.

To further rebut the CNMC’s reasoning on the existence of a preconceived plan, the Audiencia Nacional finds that there is no evidence in the file of (i) the actual holding of meetings between the accused companies (refences to this meetings were found in WhatsApp messages used to sustain their existence); (ii) the existence of prior market-sharing or price-fixing agreements or information exchange adopted according to a preconceived plan; and (iii) the criteria according to which the alleged market-sharing was carried out.

Based on the above, the Audiencia Nacional has held in several judgments that the CNMC “has made an artificial and voluntarist construction of the data obtained in the inspections to conclude that the sanctioned companies acted according to a preconceived plan (…) without support of solid and substantiated evidence.” Although the Audiencia Nacional recalls the validity of indicia, it also insists in that indicia must be persuasive and solid and that it cannot be used by the CNMC in an artificial manner, as in the case at hand.

Conclusions

The judgments of the Audiencia Nacional are, without any doubt, an important wake-up call for the CNMC, demanding it to be more rigorous in its legal assessment and evaluation of indicia.

Although it is not the first time that the Audiencia Nacional has criticised and annulled decisions of the Spanish Competition Authority, on this occasion, its analysis has gone further since it openly accused the CNMC for its artificial construction of the documents collected in the inspections in order to sanction the companies involved.

Please find below the links to the judgments of the Audiencia Nacional:

Materiales y Hormigones, S.L., Tenesiver S.L., Holcim España, S.A., Ceminter Hispania, S.A., Prefabricados Ligeros de Hormigón, S.L., Almacenes y Hormigones Creacons, S.L., Hormigones Polichi, S.L., Aridos y Hormigones Hispalenses, S.L., Cementos Portland Valderrivas, S.A., Andaluza de Morteros, S.A.U., Hormigones Sevilla, S.L., Prebetong Hormigones S.A., Hanson Hispania, S.A., Comercial Arroyo Construcción, S.A., Cemex España Operaciones, S.A.U., Surgyps, S.A., Betonalia, S.L., Lafarge Cementos, S.A.U., Beton Catalán, S.A., Hormigones Premacons, S.L., Promotora Mediterránea-2 , S.A.

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